Can Biden administration solve Title IX controversies?

Trump-era live hearing mandate raises questions of fairness for the accuser and the accused
By: | June 7, 2021
Discrimination mind map, social concept on blackboard for presentations and reports

A stronger focus on sexual assault prevention would be the most powerful change to Title IX, a commenter said during an Office for Civil Rights virtual hearing on updating the law.

Title IX places too much emphasis on reporting sexual assault as the primary way to prevent rape and other violations, which places too much responsibility on victims, said Miranda Martone, founder of the Sexual Violence Prevention Association.

Martone called for a system of prevention similar to the Department of Transportations campaign against drunk driving in 1980s, which reduced the problem substantially, she said.

“No matter how much support and healing I do I will never fully recover,” Martone said of the sexual assaults she experienced as a child and in college. “I would much prefer my rape was prevented in the first place.”

Are live hearings fair?

The Department of Education’s Office for Civil Rights, also known as OCR, is holding a five-day virtual hearing this week as it reviews Trump-era revisions to Title IX regulations and works to implement President Joe Biden’s March 8 executive order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”

Trump’s Department of Education sought to mandate live hearings in Title IX sexual assault complaints, including an ability for the accused to cross-examine their accusers and have access to evidence gathered by the institution.

Many of Monday’s comments recommended that the Biden administration maintain those regulations out of fairness to students and others accused of sexual assault.

How to participate in Title IX hearing

The Title IX hearings continued from 9 am to 5 pm, each day through Friday. Members of the public can register with the Department of Educationto share their comments.

“The current TitleI X rules are not broken and don’t need to be fixed,” said Philip A. Byler, an attorney who has represented accused students, including in the landmark Doe v. Purdue University case.

Live hearings with cross-examination, particularly when conducted by attorneys, benefit both sides in a sexual assault case, added commenter Margaret V., a lawyer who has represented both accusers and the accused.

“Clients who have experienced these hearings say they have been proven to be useful tools in helping retain a sense of control over their lives and the situation,” she said. “This leaves students more satisfied that they have been heard and taken seriously regardless of the outcome.”

Higher education attorney Katherine Nash, however, said live hearings can have a chilling impact on reports of sexual violence and misconduct and aren’t necessary to ensure fairness.

“There are fewer reports and less willingness for witnesses to participate in the process,” said Nash, whose firm had conducted more than 300 Title IX investigations and adjudcations for colleges and universities.

A more effective process would allow parties on both sides of an investigation to submit questions to investigators, review all evidence and information and submit follow-up questions.

Others urged the Department of Education to repeal a Trump rule that prohibits colleges and universities from investigating Title IX complaints in off-campus incidents. Such a change is particularly urgent on campuses where a majority of students live off-campus, a University of Texas, Austin graduate who will attend University of Georgia law school in the fall.

“Off-campus sexual misconduct is no less disruptive to a student than misconduct that occurs on campus,” said Davis, who has worked with survivors of sexual violence. “What’s the point of Title IX when you can pick and choose which survivors are worthy of protection.”

The department should also set more stringent time frames for the length of investigations so they are not drawn out and don;t increase the trauma suffered by accusers.

“The time frame should balance the school’s need to collect evidence with the survivor’s well-being,” she said.

Transgender athletes

The participation of transgender athletes to compete in women’s sports want another topic covered by several commentators. Most of them expressed concern about the fairness of allowing people who were identified as male at birth to compete against cisgender women.

Title IX has created a level playing field for women since it was enacted 50 years ago, said Linnea Saltz, a Georgetown University graduate student who ran track at Southern Utah University.

Saltz said she was at a major disadvantage when she had to run against a transgender athlete who had previously competed on a men’s team.

“Women do not possess the physical advantages that male-to-female transgender athlete does,” Saltz said. “I felt like a los the completion before it had even begun.”